T.D. Sugla J.
1. In this Departmental reference relating to the assessee''s assessment for the assessment year 1970-71, the Income Tax Appellate Tribunal has
referred to this court the following two questions of law for opinion u/s 256(1) of the Income Tax Act, 1961 :
1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in cancelling (sic), the order of the Appellate Assistant
Commissioner setting aside the order of assessment with a direction to the Income Tax Officer to make a fresh assessment after affording the
assessee a reasonable opportunity ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting the addition of Rs. 3,00,000 u/s 52 of the
Income Tax Act, 1961 ?
2. In so far as the second question of law is concerned, counsel are agreed that, in view of the Supreme Court decision in the case of K.P.
Varghese Vs. Income Tax Officer, Ernakulam and Another, , the question is to be answered in the affirmative and in favour of the assessee. The
question is so answered.
3. As regards the first question, if may be stated that the assessment was made originally by the Income Tax Officer u/s 143(3) on March 26,
1973. It was the contention of the assessee before the Appellate Assistant Commissioner that it was denied reasonable opportunity with regard to
the alleged undeclared consideration and compensation received for the reasons given in the order. The Appellate Assistant Commissioner set
aside the assessment and directed the Income Tax Officer to give the assessee a fresh opportunity to explain its position as demanded in the
assessee''s letter dated March 27, 1973, and reiterated by the assessee''s advocate before him. It was contended before the Tribunal on behalf of
the Revenue that the Appellate Assistant Commissioner should have himself decided the appeal on merits rather than setting aside the order and
directing the Income Tax Officer to make a fresh assessment after allowing the assessee an opportunity. For elaborate reasons given in the
impugned order, the Tribunal agreed with the Appellate Assistant Commissioner and held that there was nothing wrong in the Appellate Assistant
Commissioner''s setting aside the order with a direction to do fresh assessment after giving the assessee a reasonable opportunity. We fail to
understand what grievance can the Department have against such an order passed by the Appellate Assistant Commissioner and the Tribunal. We
also fail to understand as to what question of law is involved in such a conclusion which requires our opinion. In any event, on the facts stated
above, we answer the firsts question also in the affirmative and in favour of the assessee.
4. No order as to costs.
